Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news, and commentary. Writer Beware is sponsored by the Science Fiction and Fantasy Writers of America, Inc.

September 27, 2008

You may recently have seen an announcement, such as this one in the UK's Telegraph, about a group called YouWriteOn that is promising to publish 5,000 writers for free. If you've wondered what the deal is, you aren't alone.

A bit of background first. YouWriteOn is a UK-based writers' community. Similar to Authonomy, which I blogged about a couple of weeks back, YWO allows members to upload stories or book excerpts for reader critiques and ratings. Each month, the top-rated stories receive free critiques and feedback from a number of literary professionals who participate at the site (a list is here). These professionals also select six Book of the Year Award winners, who can be published for free via YouWriteOn's POD self-publishing service.

As a critique community, YWO seems to be helpful to its members. And, as with Authonomy, the chance for feedback from professional agents, editors, and writers is a terrific benefit. It's where YWO ventures into publication that things get a bit sticky.

YWO has backed away from its initial policy of automatically including POD publication in its Book of the Year Award (if a book is good enough to be selected by publishing professionals, putting it out via a self-publishing-style service might not be doing the author any favors). Writers are now offered the "opportunity" for publication, which they presumably can refuse. YWO has expanded its self-publishing endeavors, however, partnering with Legend Press, an independent UK publisher that also provides text-setting and layout services, to provide several print-on-demand packages. These range from fairly inexpensive to pretty pricey. Curiously, YWO's website doesn't seem to have a bookstore, or any other way to view its published books, but according to Amazon UK, it seems to have published just five to date.

YWO's new POD publishing initiative seems to be an effort to ramp up its self-publishing activities. It will publish for free the books of the first 5,000 writers who contact it by October 31, and have their books ready for order by Christmas 2008. Books will sold through the YWO website, and can also be made available at Amazon and other online vendors--though authors who want that option will have to buy an ISBN number for £39.99. Royalties per copy sold will be 60%--"compared," YWO says, "to 12 to 15% royalties that authors usually receive through mainstream publishing."

So why would you not want to take advantage of this offer?

Well, for one thing, you could use Lulu.com's "Published By Lulu" distribution service to set your book up right now--with an ISBN number and online retail availability--at no cost. Not only would you not have to shell out for an ISBN, you'd be working with a proven DIY self-publishing service that has put out tens of thousands of books over the past five years, rather than with a part-time publisher that seems to have produced just five.

For another, YWO will publish your manuscript exactly as you submit it, and you will not have a chance to proof it. This may be fine if you're able to provide YWO with a PDF file of your manuscript, already laid out for print. Otherwise, say YWO's submission instructions (obtained by Writer Beware), "We will publish the manuscript that you send, so be sure you are happy with your grammar, layout, and spelling." As thousands of PublishAmerica authors already know, errors can be introduced in the PDF conversion process. Will YWO check to be sure this hasn't happened? Or will it simply print the books, mistakes and all?

For yet another...that 60% royalty. On the YWO website, it's touted as being ever so much higher than the mingy royalties paid by commercial publishers, and YWO manager Edward Smith makes the same point to the Bookseller: "Print-on-demand allows royalties to be about four times higher than mainstream publishing." Ah, but there's just one little detail missing from this rosy picture: what the 60% is calculated on. If you assumed cover price, guess again. According to YWO's publishing contract (also obtained by Writer Beware), royalties are paid on net, with net defined as "after printing costs." So your royalty will be a lot less than 60% of retail--or even, very possibly, 60% of wholesale. In fact, since the contract doesn't specify how much will be deducted for printing, you actually have no idea what your royalty will be.

And then there’s the promised by-Christmas publication date. 5,000 books is an insane number to crank out in just two or three months, even if all you do is download them, bang them into PDF format, and send them to the printer. Even AuthorHouse--which has a large staff and its own production facilities--doesn't come close to that kind of volume (in August 2008, according to Amazon.com, AuthorHouse's output was 519 books). So can YWO, which appears to be run by a single individual, really deliver? It's hard to see how. Possibly that's why the contract provides an out: "The Author accepts that [Christmas 2008] is an aim and not a guarantee as unpredictable events may affect the timeline." Uh huh.

(The contract--which otherwise isn't bad, taking only print rights on a nonexclusive basis and allowing the author to terminate at any time--has a number of disclaimers of this sort. On correspondence: "...to ensure that we publish all 5,000 Authors...we cannot enter into correspondence whatsoever beyond these instructions." Translation: OMG, 5,000 authors!! No way do we have time to answer questions or deal with problems! On manuscript submission: "The Author accepts that for Work submitted to different computers that text may not appear as it does on their computer and this may be reflected in the published book...This is because of how word processing systems work and we cannot be held responsible." Translation: Our conversion process may introduce errors. Sucks to be you.)

Last but not least, what’s the benefit? What possible advantage could writers derive from this quickie, bare-bones book production service? None, as far as I can see. According to YWO's website announcement, "Our aim is to give the opportunity to new writers to help create success for their books," and in a recent press release, Edward Smith declared that “We now intend to break the traditional mould of publishing itself.” But for all this talk of paradigm-shifting, the contract makes it clear that YWO will do no more than print the books: "There is no agreement on the part of the Publisher however to engage in or fund promotion or marketing expressed or implied by this contract for free publishing." If all you want is no-cost printing, you can get it from a far more established and experienced provider that isn't trying to crank out an unrealistically enormous number of books in an insanely inadequate amount of time. And if your goal is to be published, you won't achieve it here--and you will probably lose your first publication rights into the bargain. In other words, this is a freebie that could cost you.

So what's YWO's angle on all of this? Judging by the number of books its regular self-pub service has so far produced, it isn't exactly lighting up the world of POD self-publishing--so perhaps this is an attempt to make itself appear competitive with larger self-pub companies, and thus attract more clients. (Will it actually get as many as 5,000 manuscripts? Perhaps not, but I bet it gets a bunch.) Or maybe it's a publicity stunt to keep itself in the news. Or maybe it's an effort to make some cash, since authors will undoubtedly want to buy their own books, especially during the Christmas season. YWO will also make money on the ISBNs it sells. ISBNs cost £105.75 for a block of ten, which works out to £10.58 per ISBN. YWO is selling them for £39.99--a profit of just over £29 per book. Not a large amount--but those small numbers add up. (Thanks to Jane Smith for this info.)

In the quest for publication, it is rarely a good idea to act in haste. Rather than rushing to make the deadline, writers who are tempted by YWO's offer of free publishing are well advised to step back, take a deep breath, do some research, and engage in some sober consideration.

September 21, 2008

According to Nolo, libel is "An untruthful statement about a person, published in writing or through broadcast media." Whoever publishes a defamatory statement is generally held to be as liable as the person who made the statement. So if you write a book and someone feels you have defamed them, they'll probably sue your publisher as well as you.

What about self-publishing services, though? Are they liable for the content of the books they print? Are they publishers, in any sense of the word? A recent lawsuit against Amazon's POD self-publishing service, BookSurge, put that question to the test.

The trouble began in 2003 when Mia Calcagni and Shana Sandler, both cheerleaders at a high school in Maine, had a falling out. Each complained to the school that the other was harassing her. When a swastika was spray-painted near Sandler's house in an apparent anti-semitic attack, Calcagni was convicted of criminal mischief.

Her parents, indignant, decided to write a tell-all book about the case--or rather, to hire a ghostwriter to write the book for them. (The book, unambiguously titled Help Us Get Mia, doesn't appear to be available any longer, and the website devoted to it has been removed, but you can still see its JacketFlap page, as well as a Google cache of the website--at least for a while.) When they weren't able to find a commercial publisher (is this starting to sound familiar?) they turned to BookSurge.

In February 2007, Sandler's parents sued for defamation, alleging, according to the original complaint, that the book contained "many false and defamatory statements." Included in the suit were not just Calcagni and the book's authors, but BookSurge. All defendants were alleged to be "negligent in publishing the false statements about Plaintiff."

The question before the court was whether BookSurge is a publisher in the traditional meaning of the word, and thus liable for the defamatory content of the books it publishes, or merely a distributor of content. The judge ultimately concluded the latter. Since BookSurge is "an independent company that transforms PDF documents into books with no editorial control and no communal process with the author" (i.e., it doesn't edit, fact-check, or review the material it prints), and furthermore "had no duty to inspect the work that came before it for defamation," BookSurge "neither knew nor had reason to know of the alleged defamation and therefore cannot be held liable for defamation."

Would the decision have survived, had the plaintiffs chosen to appeal? We'll never know. On September 4, the parties entered into a settlement, concluding the case.

Though the case has gotten surprisingly little press, several people have blogged about it, including Eric Goldman, Jeffrey D. Neuburger, and David Ardia of the Citizen Media Law Project. All seem to feel that the decision, in Goldman's words, "gives hope to these 'print-on-demand' vendors that they will...get some insulation from user-created problems even without statutory immunization." None mention an earlier defamation suit brought against POD vendor AuthorHouse, which resulted in an opposite decision.

In 2003, Gary D. Brock, former husband of successful romance author Rebecca Brandewyne, wrote a tell-all book about his ex-wife called Paperback Poison: the Romance Writer and the Hit Man. The book alleged, among other things, that Brandewyne had plagiarized her novels, abused drugs, and hired a hit man to kill Brock. Brock submitted the manuscript to iUniverse, which rejected it because of possible libelous content. He then went to AuthorHouse, which published it.

Brandewyne sued for defamation, and included AuthorHouse in the suit. The key issue, as in the Calcagni/Sandler case, was whether AuthorHouse was liable for the content of its books, in the same way that commercial publishers are liable. AuthorHouse argued that it merely printed the book after Brock signed its standard agreement, which states that AuthorHouse assumes no legal responsibility or liability "for any loss, damage, injury, or claim of any kind or character to any person or property." According to Publishers' Weekly, the judge "acknowledged that, based on its business model of dealing in volume, AuthorHouse 'cannot read every book cover to cover,' and that the company, to a certain extent, is entitled to hold authors responsible for the content of their work. But, [the judge] noted, 'The misconduct in this case is AuthorHouse’s failure to act when it had information that would have placed a prudent publisher on notice that the content of Brock’s book was harmful to the plaintiffs.'"

In 2006, a jury ordered AuthorHouse to pay Brandewyne a total of nearly $500,000: $230,000 in actual damages and $200,000 in punitive damages. Her parents, co-plaintiffs in the suit, were awarded $20,000 each.

Boiling all this down--the Calcari judge decided that BookSurge wasn't liable because of the nature of its business model, while the Brandewyne judge held that AuthorHouse was liable in spite of the nature of its business model. The Calcari judge also concluded that BookSurge was a glorified Kinko's ("an independent company that transforms PDF documents into books"), while the Brandewyne judge held AuthorHouse to the standards of "a prudent publisher." A key difference in these cases, of course, is the fact that Brock actually alerted AuthorHouse to the defamatory content of his book. If he hadn't, it's possible the court might have made a different decision. Nevertheless, these divergent outcomes suggest that the question of self-publishing services' liability for the content they print is far from resolved.

I'm certain we'll see the question tested further in the months and years to come.

(Note: The Calcari case isn't the only time BookSurge has been involved in litigation. Self-pub service Booklocker has brought suit against Amazon.com for requiring POD-based publishers and services to use BookSurge if they want Amazon to sell their books. Earlier, an unhappy author sued BookSurge for quality problems.)

I've fulfilled Rules 1 and 2, but after some thought, I'm not going to proceed farther. I suppose that awards like this can be classified as memes, but to me they seem very much like chain letters, in that they impose an obligation on the nominee and force the nominee to pass that obligation on to others. I could certainly think of seven great blogs to nominate--see the sidebar--but I'm not comfortable with asking them to do something just because I think they're cool.

So I'll just confine myself to saying thanks to Lisa, Kristina, Deena, Emily, and Kate for the nomination. I'm thrilled you guys like the blog, and I love the way you describe us--"like the writer's version of Law and Order." Hmmm. Now which L&O character do I want to be?

September 12, 2008

Yesterday I got a question from a writer who'd been offered a publishing contract by a small publisher, and was concerned because the contract language seemed to indicate that the publisher intended to register copyright in its name, not the writer's.

I asked the writer to send me the contract, so I could look at the actual wording. Sure enough--a transfer of copyright was demanded. But there was a twist: a rights reversion clause. Once the contract terminated, the copyright and all rights would return to the author.

I don't know if it's a growing trend or just coincidence, but I've seen a fair number of contracts like this lately--most from micropresses, but some from sizeable independent publishers. I've touched on the temporary-transfer-of-copyright issue in a previous post about precautions for small press authors, but I think it's important enough to warrant a more detailed discussion.

Most writers know that unless you're entering into a work-for-hire agreement, it's not a good thing to transfer copyright (transferring copyright means that you give up ownership, not just of any rights in the work, but of the work itself). But what about just a temporary transfer? If you're going to get the copyright back someday, is it really so bad to surrender it for the duration of the publishing contract--especially if, as in the case of my questioner, the contract is time-limited?

In a word--yes. The fact that you've been promised you'll get your copyright back eventually doesn't change the fact that, while the publishing contract is in force, you no longer own it. This means that the new owner can alter, adapt, license, sell, or do anything else it wants to your work without consultation, compensation, or even credit to you. Because you gave up copyright, even if temporarily, you have no grounds to protest, and no recourse if the use the publisher makes of your work is offensive to you or changes the meaning or the quality of the work.

Of course, if the publisher is a micropress, the above is probably moot, since it’s unlikely that a micropress will be able actually to do anything with your work (such as selling subrights). I think it's also probable that in many cases, the micropresses don't fully understand the distinction between rights and copyright, and may not intend to take full ownership (the larger independents that include this kind of clause in their contracts have no such excuse). In some cases, the temporary--transfer-of-copyright contracts I've seen are so confused and contradictory that they might not even be enforceable.

There's another concern, however, and that's the fact that micropresses--which are often started up by people without any sort of publishing, editing, or marketing experience, and are run on a shoestring and a prayer--can have a very brief shelf life. Sometimes they go out of business without ever issuing any books. Sometimes they hold on for longer, but eventually are overwhelmed by bad management, money problems, or logistical difficulties. When that happens, they may do the right thing, dissolving contracts and returning rights. But they may also simply vanish into the night, leaving writers in limbo. If your publisher does that kind of bunk, and you've given it ownership of your copyright, you are, to put it mildly, not in a good position. It's not very likely that another publisher will be willing to take on a book whose rights aren't free and clear, even if the previous publisher no longer exists. Even self-publishing services require you to warrant that you are the copyright owner.

If this sounds like a hypothetical situation, it's not. I know of at least two temporary-grant-of-copyright publishers that have gone out of business in the past year. Both, as far as I know, returned copyrights to their authors. Other authors with other publishers--for instance, the writer I mentioned at the start of this post--may not be so lucky.

Assuming the publisher is not confused about the difference between rights and copyright, and really intends to take ownership, what advantage does it gain from a temporary, rather than a permanent, transfer of copyright? Possibly, the publisher wants to avoid being lumbered with copyrights whose value has been wrung dry, and intends to get rid of copyrights for which it no longer has a use. But another reason may be that the temporary grant makes copyright transfer more palatable to nervous writers. "Yes, you're giving us ownership of your copyright," the publisher can say. "But it's okay, because in the end we give it back!"

Don't be fooled. Whether permanent or temporary, a copyright transfer is a copyright transfer, and its presence in a publishing contract should always give writers pause.

September 5, 2008

Access. That's what the manuscript submission game is all about. Getting access to publishers. Getting access to literary agents. If you've been sending out your manuscript, you know what a grind it is. You've probably wished there were an easier way.

There's no shortage of services that offer to grant your wish, claiming to provide an alternative to the conventional submission process or to leapfrog you past the slush pile. Submission services promise to streamline the tedious process of research and querying. Manuscript display websites put snippets of your work online in hopes that agents and publishers will stop by and be impressed. Book coaches and literary consultancies offer to help you polish your submission materials, and to match you up with the right agent or publisher. All, of course, for an often-hefty fee.

Most services of this kind are directly sourced in the hopes and frustrations of the writing community, with entrepreneurs perceiving writers' desire for access, and marketing a service to (supposedly) provide it. Publishers see the problem also, however, and over the years have tried in various ways to address it--some successful, some not. A few examples:

- In 2000, Del Rey, a Random House imprint, launched its Digital Writing Workshop, which offered a peer critique system for unpublished writers, with participation by Del Rey editors and the possibility that top-rated books would be acquired for publication. (This workshop is now the Online Writing Workshop for SF, Fantasy, and Horror, and no longer associated with Del Rey. As far as I know, no books were ever acquired through the workshop.)

- In 2001, Time Warner (now Grand Central Publishing) unveiled iPublish, a project that promised to find new talent by allowing writers to submit unsolicited manuscripts, and using a reader rating system to pass promising works up the line to Warner editors. Launched in a blaze of optimism about the potential of ebooks (titles were to be published as ebooks first, moving to print only after they'd showed some momentum), iPublish foundered on the realities of the ebook market--and also, possibly, on the unpredictability of reader ratings. It closed its doors after publishing just a few titles. (It was also the subject of controversy for its author-unfriendly contract.)

- In 2006, Pan Macmillan created the Macmillan New Writing program, which does away with the "agented only" policy of most major publishers, and lets authors submit unsolicited manuscripts (the tradeoff for authors is no advances). Unlike iPublish, Macmillan New Writing is still alive and doing well.

- In 2007, Simon & Schuster collaborated with Gather.com and MediaPredict for three people's choice-style contests designed to discover promising new writers without the help of literary agents. (There's currently no indication that these contest initiatives are continuing.)

- Penguin had the same aim when it partnered with Amazon.com in 2008 for the Breakthrough Novel Award. (Will the Award will be more than a one-off? No word as yet.)

- Many major publishers run in-house competitions for unpublished writers, with a publishing contract as the prize--for instance, the Delacorte Yearling Contest, or the three contests for mystery writers conducted by St. Martin's Press.

Now comes the latest beat-the-slush endeavor: Authonomy from HarperCollins UK. Authonomy has been in private testing since last spring, and opened to the public in beta just this week. On Authonomy's FAQ page, Harper explains the project thus:

HarperCollins, like all publishers, is inundated with new manuscripts, and cannot hope to consider them all fairly. We don’t feel that our current, closed ‘slush pile’ system is fair to authors themselves – nor do we believe it is giving us the best chance of finding the brightest new talent. authonomy is a genuine attempt to find a better way to determine the books on our shelves – and it hands selective power to the readers who will ultimately be buying them.

Writers with book-length manuscripts can upload anywhere from 10,000 words to a complete manuscript for visitors to read and rate. Authonomy uses the number of visitor recommendations to rank the submissions; visitors are also ranked, based on how consistently they choose highly-rated books. Once a month, 10,000 words of the top five books are reviewed by what Authonomy describes as "an editorial board made up of international HarperCollins commissioning editors," which provides "feedback, comment and assistance." Authonomy also holds out the hope that agents and publishers will become part of the Authonomy talent-spotting community. And here's the real payoff: "HarperCollins hopes to find new, talented writers we can sign up for our traditional book publishing programmes – once we’re fully launched we’ll be reading the most popular manuscripts each month as part of this search."

Authonomy is free--for now. Its Terms and Conditions allow it to change that policy at any time. Otherwise, there are no "gotchas" that I can see.

Writers may wonder about the very large amount of material Authonomy members are encouraged to put online. Will posting big chunks of a work-in-progress, or even entire manuscripts, pose rights issues? Here's how Harper addresses that question:

We really see no particular reason why a manuscript that’s been showcased online should lose any of its value to an interested publisher.

Indeed, it’s central to the authonomy concept that a writer with a proven readership is often more valuable to a publisher, not less. Book companies now regularly snap up volumes from high profile bloggers and promising self-publishers with existing readerships. It’s a good thing to prove that you’ve the enthusiasm and the skills to help make your project a success.

While I don't buy into the notion that Authonomy can help writers build readership--a few hundred reader recommendations hardly constitutes a following--I agree that showcasing a manuscript online is probably not an issue, as long as it's not being promoted for sale. The notion that merely by posting your manuscript online you exhaust your first publishing rights dates back to the early days of the Internet, when the concept of electronic rights was brand-new and it wasn't clear what sort of competition they might present to print rights. I doubt that many editors these days would be greatly bothered. (A more relevant question, in my opinion, is how bothered they might be that you’d posted your manucript on a website sponsored by a rival publisher--especially if you’re currently submitting your manuscript elsewhere.)

So is Authonomy, at last, the new submission paradigm that unpublished writers dream of? Um, not really. Manuscript display, peer critique, reader rankings, potential publisher cherrypicking: Harper has put it all together very nicely, and given it a gloss of social networking, but really, there’s not very much that’s new here. Authonomy simply moves the slush pile online, employing a different vetting mechanism (readers rather than literary agents) but ultimately providing no greater access to editors--who, as in the offline world, only look at top-vetted manuscripts. It's certainly an interesting experiment, and I will be fascinated to see how it works out. But Authonomy doesn't change the basic equation for writers. It just provides an alternate field of struggle.